Plycon Vanlines, Inc. v. Transport Leads / Transport Leads, LLC
Claim Number: FA1508001633576
Complainant is Plycon Vanlines, Inc. (“Complainant”), represented by Eryn Y. Truong of Campolo, Middleton & McCormick, LLP, New York, United States. Respondent is Transport Leads / Transport Leads, LLC (“Respondent”), Florida, United States.
REGISTRAR AND DOMAIN NAME
The domain name at issue is <plycontransportation.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 14, 2015; the Forum received payment on August 14, 2015.
On August 17, 2015, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <plycontransportation.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On August 19, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 8, 2015 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@plycontransportation.com. Also on August 19, 2015, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On September 11, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
1. Since 1982, Complainant has been providing moving and transportation services all across the United States under the PLYCON mark for items such as vehicles, furniture, fine art, antiques, and household belongings. Complainant has registered the PLYCON mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,844,447, registered May 25, 2004), which demonstrates its rights in the mark.
2. The <plycontransportation.com> domain name, registered on September 11, 2013, is confusingly similar to Complainant’s mark because it contains Complainant’s mark in its entirety and the addition of the descriptive term “transportation” and the generic top-level domain (“gTLD”) “.com.”
3. Respondent has no rights or legitimate interests in the <plycontransportation.com> domain name. First, Respondent is not commonly known by the <plycontransportation.com> domain name or any derivative of Complainant’s mark. Second, Respondent is not licensed or authorized to use Complainant’s mark.
4. Finally, Respondent is not making a bona fide offering of goods or services through the <plycontransportation.com> domain name or a legitimate noncommercial or fair use. Rather, Respondent uses the <plycontransportation.com> domain name to offer similar services to Complainant, namely moving and transportation services, thereby trading on the PLYCON mark in an attempt to divert customers for commercial gain.
5. Respondent has registered and is using the <plycontransportation.com> domain name in bad faith. Respondent expressed a willingness to sell and transfer the domain name to Complainant and offered an agreement not to purchase “any similar URLs in the future.” Further, Respondent registered the domain name in order to mislead and divert customers for its own commercial gain by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of Respondent’s website.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the PLYCON mark. Respondent’s domain name is confusingly similar to Complainant’s PLYCON mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <plycontransportation.com> domain name, and that Respondent registered and uses the domain name in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's un<plycontransportation.com> representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Since 1982, Complainant has been providing moving and transportation services all across the United States under the PLYCON mark for items such as vehicles, furniture, fine art, antiques, and household belongings. Complainant has registered the PLYCON mark with the USPTO (Reg. No. 2,844,447, registered May 25, 2004). Trademark registrations with the USPTO are sufficient to demonstrate a complainant’s rights in its marks for the purposes of Policy ¶ 4(a)(i). See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (determining that the complainant’s trademark registrations with the USPTO for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights in the mark pursuant to Policy ¶ 4(a)(i)).
Complainant argues that the <plycontransportation.com> domain name is confusingly similar to Complainant’s mark because it contains Complainant’s mark in its entirety and the addition of the descriptive term “transportation” and the gTLD “.com.” Confusing similarity under Policy ¶ 4(a)(i) may be found where a respondent’s domain name incorporates a complainant’s mark and merely adds a term which describes the complainant’s business. See Kohler Co. v. Curley, FA 890812 (Nat. Arb. Forum Mar. 5, 2007) (finding confusing similarity where <kohlerbaths.com>, the <plycontransportation.com> domain name, contained the complainant’s mark in its entirety adding “the descriptive term ‘baths,’ which is an obvious allusion to complainant’s business.”). As such, the Panel finds that Respondent’s <plycontransportation.com> domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the disputed domain names. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c). See also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant argues that Respondent has no rights or legitimate interests in the <plycontransportation.com> domain name. Complainant contends that Respondent is not commonly known by the <plycontransportation.com> domain name or any derivative of Complainant’s mark. Further, Complainant argues that Respondent is not licensed or authorized to use Complainant’s mark. The WHOIS information merely lists “Transport Leads / Transport Leads, LLC” as registrant and that Respondent has failed to submit any evidence for the Panel’s consideration. Thus, there is nothing in the record to show that Respondent is commonly known by the <plycontransportation.com> domain name pursuant to Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the <plycontransportation.com> domain name).
Complainant alleges that Respondent is not making a bona fide offering of goods or services through the <plycontransportation.com> domain name or a legitimate noncommercial or fair use. Rather, Complainant argues that Respondent uses the <plycontransportation.com> domain name to offer similar services to Complainant, namely moving and transportation services, thereby trading on the PLYCON mark in an attempt to divert customers for commercial gain. There is not a bona fide offering of goods or services or a legitimate noncommercial or fair use when Respondent uses the <plycontransportation.com> domain name to divert Internet users to a website that competes with the Complainant. See Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks). Therefore, the Panel finds that Respondent is not using the <plycontransportation.com> domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent has registered and is using the <plycontransportation.com> domain name in bad faith. Complainant alleges that Respondent expressed a willingness to sell and transfer the domain name to Complainant and offered an agreement not to purchase “any similar URLs in the future.” Bad faith exists pursuant to Policy ¶ 4(b)(i) where a respondent offers a confusingly similar domain name for sale to the complainant. See Am. Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA 93679 (Nat. Arb. Forum Mar. 16, 2000) (finding bad faith where the respondent offered domain names for sale). Accordingly, the Panel finds that Respondent demonstrated bad faith pursuant to Policy ¶ 4(b)(i).
Complainant contends that Respondent registered the <plycontransportation.com> domain name in order to mislead and divert customers for its own commercial gain by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. Bad faith registration and use under Policy ¶ 4(b)(iv) exists where a respondent uses a confusingly similar domain name to sell products and services similar to those offered by the complainant who holds rights in a mark. See Luck's Music Library v. Stellar Artist Mgmt., FA 95650 (Nat. Arb. Forum Oct. 30, 2000) (finding that the respondent engaged in bad faith use and registration by using domain names that were identical or confusingly similar to the complainant’s mark to redirect users to a website that offered services similar to those offered by the complainant). Thus, the Panel finds that Respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iv).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <plycontransportation.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: September 16, 2015
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